Biden’s Asylum Transit Ban: A Concerning Road Ahead

The Biden administration has issued a proposed administrative rule that will effectively bar most of the migrants who arrive at the U.S.-Mexico border from asylum. Under the rule, a migrant who crossed the U.S.-Mexico border without authorization and who did not seek asylum in a third country that they traveled through on the way to the U.S. will be presumed ineligible for asylum. The new rule violates Biden’s campaign promise of a just asylum system.  It will make accessing asylum virtually impossible for non-Mexican migrants who arrive at the southwest border.  With asylum rules stacked against them, migrants will be sent back to countries where their lives will be in danger.

Although there will be pathways to receive an exemption from the rule, these exemptions would leave behind vulnerable migrants who are unable to access them. For instance, our partners who work at the border have expressed concerns about the CBP One app, one of the pathways that provides an exemption from this rule. Currently, the app is the only way to receive a humanitarian exemption from Title 42 and be allowed to cross the border. But our partners find that the app unfairly disadvantages illiterate migrants, migrants who do not speak Spanish, and dark-skinned individuals, for whom its facial recognition technology does not work.

In an excellent article in Just Security, Karen Musalo of the Center for Gender and Refugee Studies explains that most Central American countries are not suitable places for migrants to seek asylum. Many have poor human rights records and lack adequate asylum infrastructure. Even in countries with adequate conditions for asylum seekers, like Costa Rica, the refugee systems are overwhelmed.  Mexico’s asylum system is also overwhelmed, and migrants expelled there under Title 42 have told researchers that they do not feel safe. In light of these conditions, the U.S. has a responsibility to be a beacon of welcome to people seeking refuge. Instead, it chooses to cast off that responsibility to countries with fewer resources.

Given the other asylum policies the administration is considering for when Title 42 is revoked, the risks to asylum seekers are especially great. There are reports that the Biden administration is considering reinstituting rushed credible fear interviews at the border, where newly arrived asylum seekers must prove to an officer that they have a “credible fear” of persecution to avoid expedited deportation. Credible fear screenings would likely take place while an asylum seeker is detained, without an attorney, days after arriving in the United States. These conditions already make it likely that migrants who face danger in their home countries could be deported without a fair hearing, but as Musalo points out, a transit ban would create an additional barrier.

Seeking asylum is a human right that is protected under both international and U.S. law. In 1951, the UN Refugee Convention established the principle of non-refoulement, that people seeking protection from persecution should not be returned to a country where they would be in danger. In 1980, Congress passed The Refugee Act of 1980, which provides protections for refugees and asylum seekers in the United States. Under that legislation, asylum claims cannot be denied because the asylum seeker entered the United States without immigration papers.

The current regulation violates both U.S. and international law. It conditions asylum on using the pathways the administration has deemed acceptable and legal, without taking into account that those who need asylum are often the least likely to be able to access them. People in danger of violence in their home country are unable to sit around waiting for permission to come to the United States. No one should be denied asylum and sent back to dangerous conditions in their home country because they did not feel safe applying for asylum in a third country, because they could not make an appointment using an app, or because they were unable to pass an initial screening without access to an attorney days after arriving in the United States. Under the new regulation, arbitrary qualifications like these will be the difference between the possibility of safety in the United States and deportation to dangerous conditions without the possibility of seeking asylum in the future.

Christians called to welcome must speak out against these policies. Barriers to asylum put our neighbors in danger and outsource the work of welcoming them to countries that have fewer resources. Instead, we need a robust asylum system that treats asylum seekers with dignity, and not with suspicion, deportation or detention. 

If you would like to tell the administration to cancel the rule, the best way is to submit a public comment. Here are some resources:

  • Many national pro-immigration campaigns have joined together to create, a website where you can craft a public comment using a template.
  • Our office put out an action alert with tips and tricks to help you write a comment.
  • The Episcopal Church is hosting a webinar on Friday, March 3 at 1 PM. Register here.

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